JACKSON, ma’am. — A federal appeals court on Friday revived a lawsuit challenging Mississippi’s practice of counting mail-in absentee ballots that are postmarked by Election Day but received up to five days later.
It seems unlikely that the ruling will affect the November 5 elections. The judges issued an order stating that the ruling would not be officially returned to a lower court until seven days after the deadline for appealing their decision had expired – which is usually at least fourteen days. That would extend the effect of the ruling well beyond November 5.
UCLA law professor Richard Hasen wrote on his election law blog that the appeals court ruling was a “crazy opinion” and noted that “every other court facing these cases has rejected this argument.”
The three-judge panel of the 5th U.S. Circuit Court of Appeals on Friday upheld a July decision by U.S. District Judge Louis Guirola Jr. reversed. has dismissed challenges to Mississippi election law by the Republican National Committee, the Libertarian Party of Mississippi and others. The appeals court order sent the case back to Guirola for further action, but the issue could end up in the Supreme Court.
Republicans filed more than a hundred lawsuits challenging various aspects of voting after he was repeatedly rebuked by judges in 2020 for only filing complaints about the way the election was conducted after votes were counted.
While the final outcome may be negligible in most elections in heavily Republican Mississippi, the case could also affect the vote in swing states.
Mississippi is one of several states with laws that allow mail-in ballots to be counted if they are postmarked before Election Day, according to the National Conference of State Legislatures. The list includes swing states like Nevada and states like Colorado, Oregon and Utah that rely heavily on voting by mail.
A federal judge will appear in July dismissed a similar lawsuit in Nevada. The Republican National Committee is asking the 9th Circuit Court of Appeals to revive the case.
Guirola wrote that Mississippi’s law does not conflict with federal election laws. The lawsuit against Mississippi’s law argued that the state improperly extends the federal election and that as a result, “timely, valid ballots are diluted by early, invalid ballots.”
Guirola disagreed, writing in July that “under Mississippi law, no ‘final selection’ is made after federal Election Day. The only thing that happens after Election Day is the distribution and counting of ballots cast on or before Election Day.”
Although the Mississippi Challenge was led by Republicans and Libertarians, there is bipartisan support for the Mississippi practice. Mississippi Attorney General Lynn Fitch is defending the state’s top election official. Secretary of State Michael Watson is a suspect in the case. Both are Republicans.
The members of the appeals panel that overturned Guirola were Judges James Ho, Stuart Kyle Duncan and Andrew Oldham, all nominated to the 5th Circuit by former President Donald Trump.
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McGill reported from New Orleans. Associated Press reporter Mark Sherman contributed from Washington.